Citation Nr: 0127187
Decision Date: 12/11/01 Archive Date: 12/19/01
DOCKET NO. 01-07 521 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to restoration of 10 percent evaluations for
service-connected residuals of bilateral stress heel
fractures, currently evaluated as noncompensably disabling,
effective September 1, 2000.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from March 1997 to March
1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Denver, Colorado. In pertinent part, the RO reduced to
noncompensable (0 percent) the evaluations of residuals of
stress fractures of the right and left heels, both evaluated
as 10 percent disabling. The veteran testified at a personal
hearing before a Hearing Officer at the RO in July 2000.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the issue decided herein has been obtained.
2. Sufficient evidence demonstrating improvement in the
right and left heel disabilities was not of record at the
time of the rating decision reducing the 10 percent
evaluations for each of these disabilities.
CONCLUSIONS OF LAW
1. The criteria for reduction of the veteran's 10 percent
rating for residuals of a stress fracture of the right heel
were not met at the time of the June 2000 rating decision
reducing that evaluation. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5284 (2001).
2. The criteria for reduction of the veteran's 10 percent
rating for residuals of a stress fracture of the left heel
were not met at the time of the June 2000 rating decision
reducing that evaluation. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5284 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran has indicated that there has been no improvement
in her right and left heel disabilities to warrant a
reduction in the evaluations. Accordingly, it is contended
that the reduction provided for in the June 2000 rating
decision was improper and the 10 percent ratings for the heel
disabilities should be restored.
The veteran's service medical records show that she
complained of bilateral heel pain in September 1997 and a
bone scan revealed findings consistent with stress fracture
of the calcaneus. She was treated conservatively with heel
cups for her bilateral heel stress fractures. She was also
put on profile and took non-steroidal anti-inflammatory drugs
for exacerbation of the pain. In October 1997, an
examination demonstrated bilateral heel pain consistent with
the diagnosis of calcaneal stress fractures. In October
1997, she was placed on a temporary profile with limitations
on marching, standing, jumping and running. A Medical
Evaluation Board report in December 1997 continued to
demonstrate that the veteran had bilateral heel pain and the
diagnosis was bilateral calcaneal stress fractures. In
January 1998, the veteran was placed on permanent physical
profile, noting that she could not run.
In rating decision of April 1998, service connection was
granted for residuals of stress fractures of the right and
left heels. Each heel disability was rated separately and
evaluated as 10 percent disabling, effective from March 31,
1998, pursuant to Diagnostic Code 5299-5273. The veteran
also received consideration of the bilateral factor for these
disabilities.
VA outpatient treatment records show that in December 1998
the veteran received treatment for podiatry orthoses follow
up. The neurovascular status was intact bilateral. However,
there was pain on palpation at the plantar lateral aspect of
the right fifth metatarsal head and mild HPK corresponding to
that site. Another record dated in July 1999 notes that the
veteran complained of bilateral heel pain. She had had an
injection earlier that month and claimed to have had no
relief. The diagnosis was plantar fasciitis.
A VA examination was completed in November 1999. The
examination report notes that the veteran's medical records
were not available at the time of the examination. The
veteran reported that she wore orthotics in her shoes. She
had had cortisone injections that did not help. She reported
having symptoms everyday even when she was not weight
bearing. She had had to give up running, hiking and climbing
because such activities caused pain. On examination, there
was no evidence for callus formation. When asked to walk on
her heels and toes, she was noted to have some discomfort on
the right. It was noted that radiographs had been obtained
of her heels in the past. There was no evidence of a spur on
the right and there was evidence of a very small of
questionable significant spur on the left. She had normal
pulses in her feet and normal papillary blanching. The
examiner noted that the veteran's shoes demonstrated
symmetrical wear.
In February 2000, the RO issued a rating decision proposing
to reduce the veteran's evaluations for the residuals of the
stress fractures of the right and left heels. Subsequently,
the RO issued the June 2000 rating decision reducing both
disabilities from 10 percent to 0 percent, effective
September 1, 2000.
At a personal hearing in July 2000 before a Hearing Officer
at the RO, the veteran testified that she received treatment
at the VA for her heels about once a month. She stated that
she had orthotics which had not helped because they were not
yet fit properly. She also indicated that she was taking an
anti-inflammatory medication for the painful heel
disabilities. Her representative indicated that the
reduction was unsupported as the examiner at the November
1999 VA examination had not had access to the veteran's
medical records to review prior to the rating examination.
The evidence indicates that in October 2000, the RO received
copies of additional VA treatment records dated in May and
June 2000 showing that she continued to complain of bilateral
heel pain. The diagnosis remained plantar fasciitis.
II. Analysis
Initially, the Board notes there has been a significant
change in the law during the pendency of this case. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107). VA regulations have also
been revised as a result of these changes. See 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R
§§ 3.102, 3.156(a), 3.159 and 3.326(a)). Among other things,
this law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims (Court) in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date. VCAA,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096 (2000).
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In
this case, in view of the disposition of the issue herein,
the Board finds that a remand for the VA to fulfill any
additional duty to assist is unnecessary.
Rating reductions are governed by the provisions of 38 C.F.R.
§ 3.344 (2001). The evidence shows that the veteran was in
receipt of 10 percent evaluations for right and left heel
disabilities since March 1998. The evaluations were reduced
to 0 percent effective September 2000. Accordingly, the
ratings were not in effect for five years or more and the
provisions in sections 3.344(a) and (b) are not applicable.
38 C.F.R. § 3.344(c). The requirements set forth in section
3.344(c) provide that for disabilities which have not become
stabilized and are likely to improve, reexaminations
disclosing improvement in the disability will warrant a
reduction in the rating. 38 C.F.R. § 3.344(c).
There is no question that a disability evaluation may be
reduced; however, the circumstances under which evaluation
reductions can occur are specifically limited and carefully
circumscribed by regulations promulgated by the Secretary.
Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The
United States Court of Appeals for Veterans Claims (Court)
has held that several general regulations are applicable to
all rating reduction cases, regardless of whether the rating
at issue has been in effect for five or more years. Brown v.
Brown, 5 Vet. App. 413 (1993). The Court has interpreted the
provisions of 38 C.F.R. § 4.13 (2001) to require that in any
evaluation reduction case, it must be ascertained, based upon
a review of the entire recorded history of the condition,
whether the evidence reflects an actual change in the
disability and whether the examination reports reflecting
such change are based upon thorough examinations. Moreover,
38 C.F.R. §§ 4.2 and 4.10 (2001) provide that in any
evaluation-reduction case, not only must it be determined
that an improvement in a disability has actually occurred,
but also that improvement in a disability actually reflects
an improvement in the veteran's ability to function under the
ordinary conditions of life and work. The provisions of 38
C.F.R. § 3.344(c) (2001) also establish that there must be
improvement before an evaluation is reduced. The Court has
restored evaluations when VA has failed to consider whether
there is improvement.
The reduction apparently was based on the findings of the
November 1999 VA examination. However, the Board finds that
this examination was not adequate on which to base a
reduction. First, the examiner noted that the veteran's
medical records were not available at the time of the
examination and, accordingly, were not reviewed. Second, it
does not appear that the examiner tested whether the veteran
continued to have tenderness to palpation. Updated
radiographs were apparently not obtained as the examiner
referred to radiographs taken "in the past." In addition,
an undated bone scan was not performed to compare to a bone
scan done while the veteran was in service, which showed
results consistent with stress fractures in the heels. The
findings of this examination are insufficient to support a
reduction.
Moreover, the VA outpatient treatment records do not evidence
improvement in the veteran's heel disabilities. A record
dated in July 1999 shows that the veteran continued to
complain of bilateral heel pain. It was noted that an
injection earlier that month had not relieved her symptoms.
In addition, it was noted that she was using orthotics. The
diagnosis was plantar fasciitis. The medical evidence does
not clarify whether the plantar fasciitis is a result of or
part of the heel disabilities. However, the VA outpatient
treatment records show continued bilateral heel problems,
including painful motion.
The VA outpatient treatment records and the veteran's
testimony at a personal hearing in July 2000 do not evidence
that the service-connected bilateral heel disabilities have
improved. She still has pain when walking and this was noted
at the VA examination in November 1999. Moreover, the
evidence shows that she has continued to receive treatment
and was provided with orthotics to help alleviate the
continuing residuals of stress fractures of the right and
left heels.
The Board does not find that the evidence reflects
improvement, warranting a reduction from 10 percent to 0
percent for each heel disability. 38 C.F.R. §§ 3.343, 3.344.
Consequently, a continuation of the 10 percent schedular
ratings are warranted.
ORDER
The 10 percent rating for residuals of a stress fracture of
the right heel is restored, effective the date of the
reduction.
The 10 percent rating for residuals of a stress fracture of
the left heel is restored, effective the date of the
reduction.
A. BRYANT
Member, Board of Veterans' Appeals